Monday, November 19, 2018
Not all that long ago, the Federal Rules of Appellate Procedure were amended to shorten the length of briefs. While circuits could opt out of the changes, the changes were not a huge surprise to those of us who had heard judges complain about briefs being too long. On November 1, a new set of proposed rule changes came out--this time to the SCOTUS rules. Under the proposed changes, merits briefs will be cut from 15,000 words to 13,000 words. Amicus briefs at the merits stage would be cut from 9,000 words to 8,000 words. Finally, reply briefs would be cut from 6,000 words to 4,500 words. According to the National Law Journal, it seems like this last cut is the one getting the most attention and push back from practitioners.
For years I have taught appellate advocacy using the book Winning on Appeal. In the second edition of the book, the late-Judge Ruggero Aldisert strongly cautions against filing a reply brief unless one of six situations exists:
- Appellee cites a case that you didn't cover in the opening brief and you can distinguish it.
- Appellee includes an argument that you didn't address in the opening brief and you have a good rebuttal to it.
- Appellee raises a jurisdictional question that you didn't cover.
- Cases have been handed down since your opening brief.
- Appellee misstated facts or made an irrelevant argument.
- Appellee failed to address one of your principal arguments.
In the third edition of the book, Judge Southwick and I noted that Judge Aldisert's dislike for reply briefs is not shared by all judges, and, in fact, some judges really value the reply brief or view the absence of a reply brief as "a surrender on anything in the appellee's brief that is new and for which some reply might have been helpful." We encourage attorneys to ascertain the custom on reply briefs in their jurisdiction.
These proposed SCOTUS rule changes, however, make it appear that SCOTUS seems to fall more on the Judge Aldisert view of reply briefs--they just aren't that important, or at least attorneys don't need too many words to say what is important.
The proposed changes are open for comment until November 30.